¹ Oil Platforms (Islamic Republic of Iran v United States of America), Merits, Judgment of 6 Nov 2003, not yet published. Hereinafter referred to as ‘Judgment’. All references to the Judgment and individual opinions appended to it are made to the text available at the Court's website <http://www.icj-cij.org>..>Google Scholar

² ICJ Reports 1996. Case-note by Evans, M (1997) 46 ICLQ 693–9.CrossRefGoogle Scholar

³ Judgment, para 22.Google Scholar

⁴ Ibid, para 20.

⁵ Ibid, paras 32 and 36.

⁶ Ibid, paras 37–8. Judge Simma shared this view, Separate Opinion, para 1.

⁷ Separate Opinion, paras 21 ff.; Separate Opinion, paras 5 and 29.Google Scholar

⁸ Judgment, para 41. Judge Simma agreed on this point, Separate Opinion, para 11.Google Scholar

⁹ Judgment, para 41–5.Google Scholar

¹⁰ Ibid, paras 39–40.

¹¹ See Reply of Iran, 164–5, para 7.75; CR 2003/8, 15–17 (Crawford); CR 2003/16, 13, 16 (Crawford).Google Scholar

¹² CR 2003/18, 17–18 (Weil); Judgment, para 39.Google Scholar

¹³ Separate Opinion, Introductory para and paras 6 ff.Google Scholar

¹⁴ Separate Opinion, para 9.Google Scholar

¹⁵ Judge Higgins, , Separate Opinion, paras 44–9.Google Scholar

¹⁶ Judge Buergenthal, Separate Opinion, paras 11 ff, 23.Google Scholar

¹⁷ Judge Al-Khasawneh, Dissenting Opinion, paras 8–9.Google Scholar

¹⁸ Judgment, paras 47–50.Google Scholar

¹⁹ Ibid, paras 51 and 56.

²⁰ Ibid, paras 52–73.

²¹ Ibid, paras 58–61.

²² Ibid, para 63.

²³ Ibid, para 64.

²⁴ Ibid, para 71.

²⁵ Ibid, paras 64, 72, and 74–8.

²⁶ Ibid, para 76.

²⁷ Ibid, para 83.

²⁸ Ibid, paras 84 and 86–7.

²⁹ Ibid, paras 90–3.

³⁰ Ibid, paras 95–9.

³¹ Judge Simma, , Separate Opinion, para 26.Google Scholar

³² Ibid, para 32; Judge Al-Khasawneh, Dissenting Opinion, paras 3–6

³³ Judgment, paras 101–24. Judges Al-Khasawneh, , Dissenting Opinion, para 7 ff and Simma, Separate Opinion, paras 35–83 considered that the counter-claims should be upheld.Google Scholar

³⁴ See generally Akehurst, M ‘The Hierarchy of Norms in International Law’ (1974–5) BYIL 273–86.Google Scholar

³⁵ The proposals that the validity of a treaty could be affected in cases where it offends against jus cogens either by its content or its execution were submitted by Special Rapporteurs Lauterpacht and Fitzmaurice, YblLC (1954–11), 154–6, YblLC (1958–11), 26.Google Scholar

³⁶ Rozakis, The Concept of Jus Cogens in the Law of Treaties (1976) 98–100, where the attitudes within and of the ILC are outlined in detail.Google Scholar

³⁷ Ibid, at 97.

³⁸ Rozakis, The Concept of Jus Cogens in the Law of Treaties, 124.Google Scholar

³⁹ See VCLT Art 31.3(c) which provides that interpretive context of a treaty includes ‘any relevant rules of international law applicable in the relations between the parties’. The ILC considered that that formulation should refer not to the relevance of the so-called intertemporal law, but simply of the rules of international law applicable between the parties, YblLC, 1966, vol II, 222. Earlier, Special Rapporteur Wai dock, when submitting to the ILC what is now Art 31.3(c) VCLT, clearly emphasized that the interpretation of treaties in the light of applicable rules of international law involved the interpretation of a treaty in conformity with jus cogens, Third Report YblLC (1964–II), 8–9.Google Scholar

⁴⁰ Jenks, The Prospects of International Adjudication (LondonStevens & Sons 1964), 458.Google Scholar

⁴¹ Cassese, International Law (OxfordOUP 2001), 144 (emphasis original).Google Scholar

⁴² See above n 17 and the accompanying text.Google Scholar

⁴³ Cf Reisman Nullity and Revision (New Haven Yale University Press 1971), 541–54, developing the argument that judicial and arbitral organs are under a duty not only to respect the will of litigants expressed in jurisdictional instruments, but also the fundamental community interest protected by jus cogens and public policy. An agreement can be void for conflicting with overriding community prescription and thus a court must disregard the norms in an instrument conferring jurisdiction that are contrary to jus cogens. If a tribunal does not faithfully apply jus cogens or applies norms contradicting it, then its decision would be null and void.Google Scholar

⁴⁴ See above nn 12 and 15–16, and the accompanying text.Google Scholar

⁴⁵ Judgment, para 76. On the issue of armed attack generally see Gray, CInternational Law and the Use of Force (OxfordOUP 2000) 96–105.Google Scholar

⁴⁶ Judge Higgins, , Separate Opinion, paras 32 and 35 emphasized the relevance of Corfu Channel in this context.Google Scholar

⁴⁷ ICJ Reports, 1949,18.Google Scholar

⁴⁸ Ibid, 19–22.

⁴⁹ Judge Krylov, considered the Court's approach unjustified as there was no evidence of any culpable negligence on behalf of Albania and ‘one cannot condemn a State on the basis of probabilities.’ Along with that, Judge Krylov, referred to various technical and geographical factors making possible that the minelaying could have been carried without Albania's knowledge. Dissenting Opinion, ICJ Reports 1949, 68–72.Google Scholar

⁵⁰ The Court referred to the Nicaragua case and the Nuclear Weapons Advisory Opinion.Google Scholar

⁵¹ A similar outcome was reached in the Corfu Channel case where the Court condemned the action of the British Navy in Albanian territorial waters which had been undertaken in order to secure evidence about the minelaying. The UK did not claim the right of self-defence but referred to the concepts of self-help and self-protection, which the Court did not accept. ICJ Reports, 1949, 35–6.Google Scholar

⁵² Lauterpacht, ‘Restrictive Interpretation and Effectiveness in the Interpretation of Treaties’ (1949) BYIL 50–1, 69. Effectiveness as a canon of interpretation is found in Art 31.1 VCLT 1969, which refers to the plain meaning of a treaty in the light of its object and purpose as the primary method of treaty interpretation.Google Scholar

⁵³ Certain German Interests in Polish Upper Silesia, PCIJ Series A, No 7, 19. In Free Zones, the Permanent Court noted that a State cannot refer to its domestic legislation in order to limit the scope of its international obligations, PCIJ Series A/B, No 46, 167.Google Scholar

⁵⁴ On specific aspects of this phenomenon see generally, Orakhelashvili, A ‘The Concept of International Judicial Jurisdiction: A Reappraisal’ 2 (2003) The Law and Practice of International Courts and Tribunals 501–50,CrossRefGoogle Scholarand Orakhelashvili, A ‘Questions of International Judicial Jurisdiction in the La Grand Case’ (2002) 15 Leiden Journal of International Law 105–30.CrossRefGoogle Scholar